Citation Nr: 0103076
Decision Date: 01/31/01 Archive Date: 02/02/01
DOCKET NO. 00-17 313 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Fort
Harrison, Montana
THE ISSUES
1. Entitlement to service connection for tender and painful
scars.
2. Entitlement to service connection for a deviated nasal
septum.
3. Entitlement to service connection for an eye injury with
vision loss and diplopia.
4. Entitlement to service connection for muscle damage due
to facial fractures.
REPRESENTATION
Appellant represented by: Montana Veterans Affairs
Division
ATTORNEY FOR THE BOARD
Michelle L. Nelsen, Counsel
INTRODUCTION
The veteran had active duty from June 1972 to June 1974.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a December 1999 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Fort Harrison, Montana.
The issues of service connection for tender and painful scars
and for a deviated nasal septum are addressed in the REMAND
portion of the decision, below.
FINDINGS OF FACT
1. The RO has obtained all relevant evidence necessary for
the equitable disposition of the veteran's appeal.
2. There is no competent evidence showing that the veteran
currently suffers from residuals of an eye injury, to include
vision loss and diplopia.
3. There is no competent evidence showing that the veteran
currently suffers from any muscle damage due to facial
fractures.
CONCLUSIONS OF LAW
1. An eye injury with vision loss and diplopia was not
incurred during active duty service. Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, § 4, 114 Stat.
2096, ___ (2000) (to be codified as amended at 38 U.S.C. §
5107); 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. §§ 3.102,
3.303 (2000).
2. Muscle damage due to facial fractures was not incurred
during active duty service. Veterans Claims Assistance Act
of 2000, Pub. L. No. 106-475, § 4, 114 Stat. 2096, ___ (2000)
(to be codified as amended at 38 U.S.C. § 5107); 38 U.S.C.A.
§ 1110 (West 1991); 38 C.F.R. §§ 3.102, 3.303 (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Board observes that recently enacted legislation has
eliminated the requirement for a well-grounded claim,
enhanced VA's duty to assist a veteran in developing facts
pertinent to his claim, and expanded on VA's duty to notify
the veteran and his representative, if any, concerning
certain aspects of claim development. See Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096
(2000); Veterans Benefits and Health Care Improvement Act of
2000, Pub. L. No. 106-419, § 104 (2000). Review of the
claims folder reveals that, with respect to the issues
discussed below, the RO's actions comply with the new
statutory provisions. In addition, there is no indication
that the Board's present review of the claim will result in
any prejudice to the veteran. Bernard v. Brown, 4 Vet.
App. 384, 392-94 (1993).
Service connection may be granted if the evidence
demonstrates that a current disability resulted from an
injury or disease incurred or aggravated in active military
service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R.
§ 3.303(a) (2000). Generally, service connection requires
medical evidence of a current disability; medical or, in
certain circumstances, lay evidence of in-service incurrence
or aggravation of a disease or injury; and medical evidence
of a nexus between the claimed in-service disease or injury
and the present disability. Hickson v. West, 12 Vet. App.
247, 253 (1999).
A disorder may be service connected if the evidence of record
reveals that the veteran currently has a disorder that was
chronic in service or, if not chronic, that was seen in
service with continuity of symptomatology demonstrated
thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet.
App. 488, 494-97 (1997). Evidence that relates the current
disorder to service must be medical unless it relates to a
disorder that may be competently demonstrated by lay
observation. Savage, 10 Vet. App. at 495-97.
Disorders diagnosed after discharge may still be service
connected if all the evidence, including pertinent service
records, establish that the disorder was incurred in-service.
38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d).
The veteran contends that he suffered injuries in 1973 when
he was assaulted which resulted in an eye injury and muscle
damage of the face. Service connection is in order for
residuals of a fracture of the left zygomatic, left orbital
rim, left antrum and left orbital floor with headaches and
temporomandibular joint pain, assigned a 10 percent
evaluation.
In this case, the Board finds that service connection is not
in order for an eye injury with vision loss and diplopia or
for muscle damage due to facial fractures because there is no
competent evidence of a current disability. Absent proof of
a present disability, a service connection claim is not
valid. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).
The Board emphasizes that the veteran is a lay person.
Therefore, he is competent to relate and describe symptoms or
manifestations amenable to his observation, but he is not
competent to offer a medical diagnosis of a disability.
Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v.
Derwinski, 2 Vet. App. 492, 494 (1992). To the extent that
residuals of an eye injury and muscle damage are not amenable
to lay observation, medical evidence is required to confirm
present disability.
With respect to the alleged residuals of an eye injury, the
notes from a VA outpatient eye examination performed in July
1999 indicates that the veteran did not report having any
vision loss or diplopia. The eye examination was interpreted
as essentially normal. The Board acknowledges that the
veteran complained of left eye pain. However, pain alone,
without a diagnosed or identifiable underlying malady or
condition, does not in and of itself constitute a disability
for which service connection may be granted. Sanchez-Benitez
v. West, 13 Vet. App. 282, 285 (2000). There is no other
medical evidence of residuals of an eye injury.
Similarly, there is no medical evidence showing current
muscle damage due to facial fractures. The same outpatient
VA eye examination is negative for any muscle damage
affecting the eyes. There is no other medical evidence
suggesting the presence of muscle damage associated with the
facial fractures.
In conclusion, the Board finds that the preponderance of the
evidence is against service connection for an eye injury with
vision loss and diplopia or for muscle damage due to facial
fractures. Veterans Claims Assistance Act of 2000, Pub. L.
No. 106-475, § 4, 114 Stat. 2096, ___ (2000) (to be codified
as amended at 38 U.S.C. § 5107); 38 U.S.C.A. § 1110;
38 C.F.R. §§ 3.102, 3.303. If the veteran wishes to complete
his application for service connection for these disorders,
he should submit medical evidence confirming the presence of
a current disability. Veterans Claims Assistance Act of
2000, Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, ___ (2000)
(to be codified as amended at 38 U.S.C. § 5103(a)); Robinette
v. Brown, 8 Vet. App. 69, 77-80 (1995).
ORDER
Service connection for an eye injury with vision loss and
diplopia is denied.
Service connection for muscle damage due to facial fractures
is denied.
REMAND
As indicated above, the enactment of Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096
(2000), represents a significant change in the law. Among
other things, this law eliminates the concept of a well-
grounded claim, redefines the obligations of the VA with
respect to the duty to assist, and supersedes the decision of
the United States Court of Appeals for Veterans Claims in
Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom.
Morton v. Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000)
(per curiam order), which had held that VA cannot assist in
the development of a claim that is not well grounded. This
change in the law is applicable to all claims filed on or
after the date of enactment of the Veterans Claims Assistance
Act of 2000, or filed before the date of enactment and not
yet final as of that date. Veterans Claims Assistance Act of
2000, Pub. L. No. 106-475, § 7, subpart (a), 114 Stat. 2096,
___ (2000). See also Karnas v. Derwinski, 1 Vet. App. 308
(1991).
Specifically as to development, the law requires VA to
attempt to secure all pertinent private or VA medical records
identified by the veteran. The Board finds that the RO has
complied with this requirement. Veterans Claims Assistance
Act of 2000, Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, ___
(2000) (to be codified at 38 U.S.C. § 5103A).
In addition, the new law requires VA to obtain a medical
examination or medical opinion when necessary to make a
decision on the claim. An examination or opinion is
necessary to make a decision on the claim if the evidence of
record, lay or medical (including statements from the
claimant): 1) contains competent evidence that the claimant
has a current disability, or persistent or recurrent symptoms
of a disability; and 2) indicates that the disability or
symptoms may be associated with the claimant's active duty
service; but 3) does not contain sufficient medical evidence
to make a decision on the claim. Id.
In this case, there is competent evidence that the veteran
has a deviated nasal septum and painful and tender scars.
The May 1999 VA computed tomography (CT) scan of the head
indicates that the nasal septum deviates to the left. With
respect to the claim for scars, the Board notes that the
veteran is competent to offer observations as to pain and
tenderness. Grottveit, 5 Vet. App. at 93; Espiritu, 2 Vet.
App. at 494. Similarly, the record indicates that these
disorders may be related to the veteran's service.
Therefore, the Board finds that the new VA law requires a
remand for additional development.
On remand, the RO should ensure that it complies with all
other applicable notice and development requirements
ascertained on review of the claims folder.
Accordingly, this case is REMANDED for the following action:
1. The RO should afford the veteran for
a VA examination to evaluate for possible
deviated nasal septum. All indicated
tests and studies should be performed as
deemed necessary by the examiner. The
claims folder must be made available to
the examiner for review prior to the
examination. Based on physical
examination of the veteran and review of
the claims folder, the examiner is asked
to determine whether the veteran has a
deviated nasal septum. If so, the
examiner should offer an opinion as to
whether it is as likely as not that the
deviated nasal septum is related to his
period of service. If the examiner is
unable to provide this opinion, the
report should so state. Any opinion
offered should include a complete
rationale.
2. The RO should afford the veteran a VA
examination to evaluate facial scars.
All indicated tests and studies should be
performed as deemed necessary by the
examiner. The claims folder must be made
available to the examiner for review
prior to the examination. The examiner
is asked to provide a detailed
description of the facial scars, to
include the presence or absence of
ulceration, herniation, adhesions, and
tenderness or pain on objective
demonstration. The examiner should also
comment on whether any of the scars limit
function of the affected part.
3. The veteran is hereby advised that
failure to report for a scheduled VA
examination without good cause shown may
have adverse consequences for his claim.
4. After completing the above
development, and ensuring compliance with
other notice or development requirements
found on review of the claims folder, the
RO should readjudicate the veteran's
claim for service connection for tender
and painful scars and for a deviated
nasal septum. If the disposition of
either claim remains unfavorable to the
veteran, the RO should furnish the
veteran and his representative a
supplemental statement of the case and
afford the applicable opportunity to
respond.
Thereafter, the case should be returned to the Board for
final appellate review, if in order. The Board intimates no
opinion as to the ultimate outcome of the veteran's claim.
The veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). No
action is required of the veteran until notified.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
V. L. Jordan
Member, Board of Veterans' Appeals